The opinion
On Motion for Rehearing.
TRIMBLE, P. J.
It is urged that the opinion does not pass upon one contention made by appellant, namely, that the proper construction to be placed on sections 2 and 25 of the by-laws, when taken together, is that they impliedly give consent to
other
insurance úp to three-
*442
fourths of the value of the property, and hence there is no need for consent to such other insurance, since the defendant is protected against liability for all above three-fourths of the value and, in case of other insurance, is liable for only its
pro rata
share of the loss up to that amount. "We are unable to accept this view. Article 15 of the old Constitution did refer to other insurance; and provided that in case there was such, the company should pay only its
pro rata
part.. But the new Constitution and by-laws do not refer to other insurance. The only
other
insurance permitted in them is that obtained
with the consent
of the company; and the
pro rata
liability of the company is only in cases “when such written consent is given.” Section 2 does not directly or by inference refer to other insurance. Indeed the other paragraphs of said section show that the insurance there spoken of is insurance made by the defendant company and not insurance in general or by other companies. Said section has reference solely to the amount of insurance that the company itself may issue, and makes any policy the defendant issues, or its agents may write, void as to any excess above three-fourths of the value. The defendant is, by statute, exempt from the statutory regulations applicable to general insurance companies.
The barn was built in 1883 or 1885. Plaintiff claims its value at the time of the fire was $4000, while defend-, ant had much evidence to show that at a liberal valuation it was worth only $1800 and not worth over $2000. If it was of this value, then the other insurance of $1500 covered three-fourths of its value. We are unable to find in the record what the court, sitting as a jury, considered the barn was worth. But without regard to this, we think that there is no ground for construing the two sections as impliedly providing for any other insurance without the company’s consent. The
pro rata
clause, by the express terms of section 25, applies only when other insurance has been obtained by consent, and
*443
cannot be taken as a waiver of forfeiture in case additional insurance.is taken without tbe company’s consent. [Myers v. German, etc., Ins. Co., 166 N. W. 246 .]
Tbe motion for rebearing is overruled.
All concur.